The IP Rights of Waste (and how to avoid getting sued)

Tom Szaky is the founder of TerraCycle, a New Jersey based company that makes fertilizer using worms and produces retail products from recycled goods. The firm was started while he was a student at Princeton University. Tom was named "The No. 1 CEO Under Thirty" by Inc. magazine in its July 2006 issue.

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It is clear that it is uncool to copy the trademarked and patented Coca-Cola plastic 20-ounce bottle and fill it with some form of beverage. It's uncool (and illegal) because you would be benefiting from all of the work that Coke put into developing the shape and the brand.

But let's say someone buys that Coke bottle and throws it out, and it's collected and ends up at my factory. I then clean it and refill it with TerraCycle worm poop or cleaner or repellent and sell it to Home Depot. Moreover, I mix it in with other brands of bottles that come across our factory floor, including Pepsi brands and other random brands. In this case would Coke have a case if it wanted to stop TerraCycle from employing the used Coke bottles? It's a moot point because Coke actually wants us to use its bottles, but — hypothetically speaking — I don't think Coke would have a case because we're not benefiting from the bottles' shape. In fact, use all shapes without any discrimination (all garbage has equal rights).

The reason I pose this question is that, unlike TerraCycle, most small companies that upcycle waste don't have extensive licensing agreements with the brands whose garbage they play with. We got our experience in a law suit involving Miracle Gro, and since then, we have become very proactive legally. Is that really necessary? Well, I recently heard about a college student who was making magnets and other knickknacks out of beer cans and bottle caps. She recently got sued by Heineken.